Citation Nr: 9834667
Decision Date: 11/23/98 Archive Date: 12/01/98
DOCKET NO. 95-42 323 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Hartford, Connecticut
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran’s death.
2. Entitlement to dependency and indemnity compensation
(DIC) benefits pursuant to the provisions of 38 U.S.C.A. §
1151 (West 1991).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Schlosser, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1943 to
March 1946.
This matter originally came before the Board of Veterans’
Appeals (Board) on appeal from a May 1995 rating action in
which the RO denied service connection for the cause of the
veteran’s death and also denied DIC benefits pursuant to the
provisions of 38 U.S.C.A. § 1151. The appellant appealed and
was afforded a hearing at the RO in February 1996. Her
claims were denied by the hearing officer in a November 1996
Supplemental Statement of the Case (SSOC). In a December
1997 decision, the case was remanded by the Board to obtain
the terminal hospital clinical records and a medical opinion.
The requested development has been accomplished and the case
has now been returned to the Board for further appellate
consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant and her representative contend, in essence,
that the veteran’s death should be service connected because
he had heart disease in service or, in the
alternative, that his death is related to his service
connected varicose veins of the left lower extremity, rated
20 percent disabling. She maintains that the veteran was
seen for heart complaints and diagnosed with hypertension in
service. The appellant also contends that medication
prescribed for the veteran’s heart disease at a VA facility
in 1989 played a direct role in his death in October 1993
because the medication was improperly prescribed for someone
like the veteran who had a pacemaker.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the appellant’s claim for service
connection for the cause of the veteran’s death. It is the
further decision of the Board that the appellant has failed
to meet her burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that her
claim for DIC pursuant to the provisions of 38 U.S.C.A. §
1151 is well-grounded.
FINDINGS OF FACT
1. The veteran died on October [redacted], 1993, and the
underlying cause of death was shown by the death certificate
to be ventricular arrhythmias due to atherosclerotic coronary
disease.
2. Atherosclerotic coronary artery disease, to include
essential hypertension, was not demonstrated during service
or within one year of separation from service.
3. The veteran was service connected at the time of his
death for varicose veins of the left lower extremity, rated
20 percent disabling.
4. The veteran’s service connected varicose veins of the
left lower extremity are not shown to have aided or lent
assistance to the production of death.
5. The claim for DIC benefits pursuant to the provisions of
38 U.S.C.A. § 1151 is not plausible.
CONCLUSIONS OF LAW
1. Atherosclerotic heart disease, including essential
hypertension, was not incurred in or aggravated by service
and may not be presumed to have been incurred in service. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991 & Supp.
1998); 38 C.F.R. §§ 3.102, 3.307, 3.309 (1998).
2. The veteran’s service connected varicose veins of the
left lower extremity did not cause or contribute
substantially or materially to cause the veteran’s death. 38
U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.312
(1998).
3. The claim for DIC pursuant to the provisions of 38
U.S.C.A. §1151 is not well-grounded. 38 U.S.C.A. §§ 1151,
5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.102, 3.358
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran died on October [redacted], 1993, at the age of
75. The certificate of death indicates that the immediate
cause of death was ventricular arrhythmias due to
atherosclerotic coronary artery disease (CAD). An autopsy
was not performed. The veteran died at a private hospital
in Hartford, Connecticut, where he was initially seen in
the emergency room and died after his admission. At the
time of his death, service connection was in effect for
varicose veins of the left lower extremity, rated
20 percent disabling.
Appellate review of the veteran’s service medical records
reveals that on entrance examination, the veteran’s blood
pressure was 125/80. The veteran was seen on January 7,
1944, with a complaint of pain in the area of his heart which
decreased with rest. The veteran was observed to be nervous
and twitching. Findings included a nasal discharge and
varicosities of the superficial veins of the left thigh. The
heart was reported to be negative. The next reference to
treatment involving the cardiovascular system was on May 16,
1945, at which time the veteran had a
blood pressure reading of 134/90 with a notation of
hypertension. The treatment records noted that the veteran
had some dizziness and precordial left chest sharp pain
(“gas”). It was further stated that the veteran was
nervous and easily exhausted. On separation examination, the
veteran’s blood pressure was 110/72; there was no diagnosed
cardiovascular condition noted.
Post-service treatment records include a VA hospitalization
at the Newington, Connecticut VA Medical Center (VAMC) in
October and November 1947 for varicose veins. Blood pressure
was noted to be 120/75.
The veteran returned to the Newington VAMC on October 23,
1951, with complaints of decreased energy. Blood pressure
was reported to be 130/80 and the heart showed a regular
sinus rhythm with an occasional premature beat. The
diagnostic impression was anginal syndrome of questionable
etiology and neurasthenia. An electrocardiogram was reported
to be within normal limits. In April 1965, the veteran was
noted to have a negative cardiovascular history with respect
to angina, dyspnea on exertion, orthopnea, ankle edema,
hypertension or claudication. Cardiovascular examination
showed no murmur or friction rubs.
Blood pressure reported on a peripheral vascular examination
in August 1965 was 120/90. No diagnosis of hypertension was
indicated.
Original hospital clinical records were received. A letter
dated October 27, 1987, from Dr. Milewski provided a medical
history of the veteran on transfer of care to VA and
indicated a history of four vessel coronary artery bypass
surgery in 1981. The report indicated that the veteran had
done remarkably well and continued to engage in cardiac
rehabilitation exercises as well as an active lifestyle.
VA outpatient treatment records show that the veteran was
first seen in August 1987 to obtain medication after he had
lost his insurance. His condition was noted to be stable
with occasional chest pain; the veteran stated at that time
that he rarely took Nitroglycerin and had been swimming at
the YMCA. He was referred to the cardiovascular clinic.
The veteran was hospitalized by VA in June 1989 because of
atrial fibrillation. Treatment records from that facility
reflect that the veteran’s pacemaker was adjusted and he was
discharged after a period of observation. The veteran was
started on Procainamide on July 19, 1989. He was seen for
follow-up on July 26, 1989, at which time it was noted that
the veteran did not have any cardiac symptoms. He continued
to take that medication until he was hospitalized by VA in
February 1990 and treated for thrombocytopenia. During his
hospitalization in February 1990, it was determined that the
Procainamide would be discontinued since there was a question
of whether his thrombocytopenia was due to the Procainamide
the veteran had been taking. VA outpatient treatment records
in March 1990 include a note that there had been no increase
in the veteran’s cardiac symptoms. By September and October
1990, the veteran’s thrombocytopenia was noted to have
resolved. There is no evidence that the veteran’s
thrombocytopenia reappeared at any time after October 1990.
The terminal hospital clinical records were received and show
that the veteran was seen in the emergency room at the
Hartford Hospital on October [redacted], 1993. He was noted
to have a history of coronary artery bypass surgery. The report
indicates that the veteran was found unresponsive in the yard
while digging. The veteran suffered cardiac arrest and was
pronounced dead at 2:45 p.m. on October [redacted], 1993.
At her RO hearing in February 1996, the appellant testified
that she was not aware of the medications that the veteran
was taking because he did not discuss those things with her.
She stated that her son is a pharmacist and had advised her
that the use of Procainamide was contraindicated for the
veteran because he had an AV block. She indicated that the
veteran did not take any heart medication until he about 10
years before his death in 1993.
II. Analysis
b. Service Connection for the Cause of the Veteran’s Death
The Board finds that the appellant’s claim for service
connection for the cause of the veteran’s death is well
grounded within the meaning of 38 U.S.C.A. § 5107(a) because
it is plausible. See Murphy v. Derwinski, 1 Vet. App. 78
(1991). The Board is also satisfied that all relevant facts
have been properly developed and there is no further
assistance required in order to comply with the provisions of
38 U.S.C.A. § 5107(a). See Littke v. Derwinski, 1 Vet. App.
90 (1990).
Service connection will be granted for a disability resulting
from disease or injury which was incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131. If an organic disease
of the cardiovascular system, such as essential hypertension,
becomes manifest to a degree of 10 percent or more within one
year after discharge from service, it may be presumed to have
been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1997). Service
connection will be granted for the cause of the veteran’s
death if a disability incurred in or aggravated by service
caused or contributed substantially or materially to cause
the veteran’s death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
At the time of the December 1997 Board remand, we did not
have the terminal hospital clinical records. Those have now
been associated with the claims folder. As noted above, the
terminal hospital clinical records document that the veteran
presented to the emergency room and died of cardiac arrest
shortly after he was admitted. The cause of death was
indicated to be ventricular arrhythmias due to
atherosclerotic CAD. The terminal hospital clinical records
are consistent with the death certificate as to the cause of
the veteran’s death.
Pursuant to the December 1997 remand, the RO requested a VA
medical opinion from a cardiologist on staff at the West
Haven, Connecticut VAMC with respect to whether essential
hypertension or CAD was present in service or within the
first post-service year. The medical opinion received at the
RO in September 1998 indicated that the veteran did not have
essential hypertension or CAD in service or within one year
of his discharge from service. The VA cardiologist
specifically explained that one abnormal blood pressure
reading in service followed by normal readings for more than
20 years is not consistent with a “chronic” essential
hypertensive condition.
The Board also asked that the VA physician comment, in the
event the veteran was shown by terminal hospital clinical
records to have died of a pulmonary embolus, whether such
pulmonary embolus was caused by his service connected
varicose veins of the left lower extremity. The physician
expressed no opinion here because the underlying cause of
death was clearly shown to be heart disease including
essential hypertension. The veteran’s service connected
varicose veins of the left lower extremity are not shown by
any medical evidence of record to have been a significant
factor in his death. On this basis, service connection for
the cause of the veteran’s death is not warranted and the
appeal on this issue is denied.
b. Compensation Benefits Pursuant to 38 U.S.C.A. § 1151
The threshold question with respect to the claim for
compensation benefits under 38 U.S.C.A. § 1151 is whether the
appellant has presented a well-grounded claim. If she has
not presented a well-grounded claim, the claim must fail and
there is no further duty to assist in the development.
38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78
(1990). A well-grounded claim requires more than an
allegation; the claimant must submit supporting evidence.
Furthermore, the evidence must justify a belief by a fair and
impartial individual that the claim is plausible. Tirpak v.
Derwinski, 2 Vet.App. 609 (1992).
Evidentiary assertions by the appellant must be accepted as
true for the purposes of determining whether a claim is well-
grounded, except where the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet.App. 19, 21 (1993).
In pertinent part, 38 U.S.C.A. § 1151 provides that where any
veteran shall have suffered an injury, or an aggravation of
an injury, as the result of hospitalization, medical or
surgical treatment, not the result of such veteran’s own
willful misconduct, and such injury or aggravation results in
additional disability or death, compensation shall be awarded
in the same manner as if such disability or death were
service connected.
38 C.F.R. § 3.358, the regulation implementing that statute,
provides, in pertinent part, that in determining if
additional disability exists, the beneficiary’s physical
condition immediately prior to the disease or injury on which
the claim for compensation is based will be compared with the
subsequent physical condition
resulting from the disease or injury. As applied to medical
or surgical treatment, the physical condition prior to the
disease or injury will be the condition which the specific
medical or surgical treatment was designed to relieve.
Compensation will not be payable for the continuance or
natural progress of disease or injuries for which the
hospitalization, etc., was authorized. In determining
whether such additional disability resulted from a disease or
injury or an aggravation of an existing disease or injury
suffered as a result of hospitalization, medical or surgical
treatment, it will be necessary to show that the additional
disability is actually the result of such disease or injury
or an aggravation of an existing disease or injury and not
merely coincidental therewith. 38 C.F.R. § 3.358 (b), (c)
(1). 38 C.F.R. § 3.358 (c) (3) (1998) provides that
compensation is not payable for the necessary consequences of
medical or surgical treatment or examination properly
administered with the express or implied consent of the
veteran, or, in appropriate cases, the veteran’s
representative. “Necessary consequences” are those which
are certain to result from, or were intended to result from,
the examination or medical or surgical treatment
administered.
Following a review of the claims folder, it is the opinion of
the Board that the appellant has not presented a well-
grounded claim for DIC benefits pursuant to the provisions of
38 U.S.C.A. § 1151 based on medication prescribed to the
veteran at the Newington, Connecticut VAMC in 1989.
There is no medical opinion of record in this case which
indicates that the Procainamide prescribed by VA personnel in
July 1989 was the cause of the veteran’s death or
substantially contributed to his death. As a layperson, the
appellant is not competent to provide such evidence. See
Espiritu v. Derwinski, 2 Vet.App. 492 (1992) and Grottveit v.
Brown, 5 Vet.App. 91 (1993). What is shown is that after the
medication was prescribed in 1989, the veteran developed
thrombocytopenia in 1990. The medication was then
discontinued because there was a question of whether it
caused the thrombocytopenia. By October 1990,
thrombocytopenia had resolved. There is no indication that
the veteran had thrombocytopenia at the time of his death.
There was no medical opinion from the VA physician concerning
thrombocytopenia because the terminal hospital clinical
records did not show it existed at the time of his death.
Without medical evidence of a nexus between VA treatment and
the veteran’s death, the claim is not well-grounded and the
appeal on this issue is denied.
ORDER
1. Service connection for the cause of the veteran’s death
is denied.
2. Entitlement to DIC benefits pursuant to the provisions of
38 U.S.C.A. § 1151 is denied.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals.
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